The origin of Absolute Liability

Liability is another side of the rights accorded to citizens. Evolution of liability went hand in hand with evolution of law and society, vicarious liability evolved when the concept of delegation came about thus possibly in cave man society when a child destroyed property his/her parents would be held liable, later in the civilized societies of Sumer and Indus this would be slave or servant. Romans refined the system of liability and also added the codes of law and liability the vanquished would face, but the real impetus to provide a fault based liability came in the Islamic era when the Islamic canon laws derived independently or under the influence of Roman laws. Post renaissance laws regarding liability evolved at a fast pace in the common law system of Britain where the concept of Damnum sine injuria (damages without injury) was given precedence. Thus any damage would not necessarily give rise to injury and according to scholars of that era injury wan necessary to provide relief. Thus English courts dealt with two broad heads of cases:

• Where individual harm may lead to societal benefit at large eg, stopping adjoining landowner from doing something detrimental to neighbouring proprietors.
• Where legal remedy would be costlier than loss accrued.

In 1860 there arose the case of Ryland v Fletcher in England where a mine was damaged by water from overhead lake and when the miner sued the owner of lake the judge found that the laws of the time relating to the damage caused did not occasion an injury. Prosecution could be done on lines of tort of cattle trespass or negligence, the lower court allowed compensation based on negligence and trespass but on appeal in the Court of exchequer where Justice Colin Blackburn laid the principle of strict liability in order to break the impasse. He spoke on behalf of all the judges and said,

"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff’s default; or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exits here, it is unnecessary to inquire what excuse would be sufficient."

Here we find a classic example of use of pragmatic use of tort regime to attain just and fair result. The law of the land at the time was incapable of providing equitable remedy so Blackburn J invented the concept of Strict liability to provide remedy. On further appeal Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate. Thus the rule of strict liability had following exception:

1.      The use of land has to be non natural

2.      Plaintiff’s own fault

3.      Act of God

4.      Consent of the plaintiff

5.      Act of third party

6.      Statutory authority

The position remained constant and thought to be saturated in common law countries until 1980s when pursuant to the biggest industrial disaster in world in Bhopal Indian Supreme court in an unrelated gas leak case (Oleum gas leak case of Delhi) laid down a liability principle without any exceptions.

Bhagwati CJ pointed that there is a need to find out ‘as to what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured.’ The question was does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined? The court held that, ‘the rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape’. But the court rued that ‘this rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country’.

So Bhagwati CJ went on to formulate his own test to fix liability:

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.”